No. 03-14-00714-CV

_____________________________ 

Court of Appeals 

Third Judicial District of Texas 

Austin, Texas

_____________________________________ 

KEVIN TARR, 

Appellant, 

v.

LANTANA SOUTHWEST HOMEOWNERS’ ASSOCIATION, INC.,

Appellee. 

_______________________________ 

REPLY BRIEF OF APPELLANT 

_______________________________ 

On Appeal from the 98th District Court 

of Travis County, Texas 

Trial Court No. D-1-GN-12-002467 

Judge Rhonda Hurley, Presiding 

_______________________________ 

Matthew Ploeger 

State Bar No. 24032838 

LAW OFFICE OF MATTHEW PLOEGER 

901 S. Mopac Expressway, Suite 300

Barton Oaks Plaza, Building One

Austin, Texas 78746 

P: 512.329.1926 

F: 512.298.1787

Matthew@PloegerLaw.com

Attorney for Appellant

ACCEPTED

03-14-00714-CV

5580877

THIRD COURT OF APPEALS

AUSTIN, TEXAS

6/8/2015 11:50:37 AM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 6/8/2015 11:50:37 AM JEFFREY D. KYLE Clerk
ii

RECORD REFERENCES

In this brief, the following record citation forms will be used:

• Clerk’s Record will be cited as “CR[page].”

• Supplemental Clerk’s Record will be cited as “SCR[page].”

• Tarr’s “Brief of Appellant” will be cited as “Br. at [page].”

• Lantana’s “Reply Brief of Appellee” will be cited as “Resp. at [page].”
iii

TABLE OF CONTENTS

Record References .................................................................................................... ii

Table of Contents..................................................................................................... iii

Index of Authorities................................................................................................. iv

Introduction................................................................................................................1

Argument....................................................................................................................4

I. The trial court erred in granting summary judgment for Lantana on its 

claim that Westlake Recovery House breached the deed restriction...................4

A. Lantana, not Tarr, had the burden to prove whether Westlake 

Recovery House was protected by the FHA and other laws.........................4

B. The evidence is more than sufficient to raise a genuine issue of 

material fact that WRH is a protected group home and, thus, 

permissible under the restriction and federal law..........................................7

C. Lantana’s assertion that the home violates the covenant because it is 

a “duplex” is a red herring...........................................................................10

II. The trial court erroneously granted summary judgment on Mr. Tarr’s 

counterclaims based entirely on its erroneous summary judgment on the 

affirmative defenses...........................................................................................12

III. The trial court erred in awarding attorney’s fees to the HOA based on a 

void and unenforceable injunction.....................................................................12

A. Tarr did not agree that Lantana was entitled to recover attorney’s 

fees...............................................................................................................12

B. To be a “prevailing party,” one must obtain some meaningful relief 

that materially alters the position of the parties. .........................................13

Conclusion and Prayer .............................................................................................15

Certificate of Compliance ........................................................................................17

Certificate of Service ...............................................................................................17
iv

INDEX OF AUTHORITIES

Cases

AHF Community Development LLC v. City of Dallas, 

633 F. Supp. 2d 287 (N.D. Tex. 2009) ..................................................................4

Burch v. Coca-Cola Co., 

119 F.3d 305 (5th Cir. 1997) .................................................................................8

Burka v. New York City Transit Auth., 

680 F. Supp. 590 (S.D.N.Y. 1988) ......................................................................10

Celotex Corp. v. Catrett, 

477 U.S. 317 (1986)...............................................................................................4

City of Livonia v. Dep’t of Soc. Servs., 

423 Mich. 466, 378 N.W.2d 402 (1985)..............................................................11

Gillebaard v. Bayview Acres Ass’n,

263 S .W.3d 342 (Tex. App—Houston [1st Dist.] 2007, pet. denied) ..................5

Hicks v. Falcon Wood Prop. Owners Ass’n, 

No. 03-09-00238-CV, 2010 WL 3271723 

(Tex. App.—Austin Aug. 19, 2010, no pet.) (mem. op.) ......................................6

Intercontinental Group P’ship v. KB Home Lone Star L.P.,

295 S.W.3d 650 (Tex. 2009)................................................................................13

Jeffrey O. v. City of Boca Raton, 

511 F. Supp. 2d 1328 (S.D. Fla. 2007)................................................................10

Lund v. Leibl, 

No. 03-99-00032-CV, 1999 WL 546996 

(Tex. App.—Austin July 29, 1999, no pet.) (mem. op.)....................................4, 5

McKey v. Occidental Chemical Corp., 

956 F. Supp. 1313 (S.D. Tex. 1997)......................................................................7

McKivitz v. Twp. of Stowe, 

769 F. Supp. 2d 803 (W.D. Pa. 2010)....................................................................9

Merrell Dow Pharm., Inc. v. Havner,

953 S.W.2d 706 (Tex. 1997)................................................................................10
v

Mohamed v. Exxon Corp., 

796 S.W.2d 751 (Tex. App.—Houston [14th Dist.] 1990, writ denied)...............8

Norton v. Deer Creek Prop. Owners Ass’n, Inc., 

No. 03-09-00422-CV, 2010 WL 2867375 

(Tex. App.—Austin July 22, 2010, no pet.) (mem. op.)......................................13

Reg’l Econ. Cmty. Action Program, Inc. v. City of Middletown, 

294 F.3d 35 (2d Cir. 2002) ..............................................................................9, 10

Taylor v. Principal Financial Group, Inc., 

93 F.3d 155 (5th Cir. 1996) ...................................................................................7

United States v. City of Chicago Heights, 

161 F. Supp. 2d 819 (N.D. Ill. 2001)...................................................................11

Wagner v. Fair Acres Geriatric Center,

49 F.3d 1002 (3d Cir.1995) ...................................................................................9

Wibbenmeyer v. TechTerra Communications, Inc., 

No. 03-09-00122-CV, 2010 WL 1173072 

(Tex. App.—Austin Mar. 26, 2010, pet. denied) (mem. op.)..............................14

Rules

TEX. R. CIV. P. 166a(i) .............................................................................................10
1

TO THE HONORABLE COURT OF APPEALS:

Appellant Kevin Tarr respectfully submits this Reply Brief.

INTRODUCTION

Lantana largely ignores Tarr’s argument and authority hoping, perhaps, that 

this Court will ignore it, too.

Burden of Proof

Lantana attempts to improperly shift the burden of proof. Specifically, the 

deed restriction on which the HOA bases its claim expressly provides that it does 

not exclude uses that are protected by federal or state law, which includes the FHA’s 

protection of group homes for the handicapped. Thus, to prove breach, Lantana must 

prove that Mr. Tarr’s use of the property as a group home falls outside the deed 

restriction’s inclusive definition. Thus, the cases Lantana cites are inapposite. None 

of the cited cases involves a covenant that incorporates statutory protections into the 

definition of permissible uses, like the one here.

But even if the covenant did not contain this provision and Lantana were 

correct that once the HOA otherwise establishes a breach the burden shifts to the 

homeowner, the First Summary Judgment would still have been erroneous. At the 

time of the first summary judgment, Lantana had not established any breach. Indeed, 

the issue of breach was not raised in Lantana’s first motion for summary judgment. 

Thus, under Lantana’s own position, the burden had not shifted to Tarr. It was not 
2

until the second motion for summary judgment that Lantana purported to establish a 

breach of the covenant. But the trial court, relying entirely on the erroneous first 

summary judgment, ignored the evidence that the WRH residents were disabled 

under the FHA and related statutes.

Evidence of Disability

In its response, Lantana also ignores the evidence and case law holding such 

evidence sufficient to establish that residents of recovery facilities are protected. 

Rather than address the overwhelming weight of authority, Lantana asserts that it is 

irrelevant because some of it comes from other jurisdictions despite the fact that 

those courts were addressing the federal law at issue here. Moreover, despite 

Lantana’s mischaracterization, the supposedly superior law Lantana relies on is in 

no way inconsistent with case law from other federal or state courts cited by Tarr.

Lantana simply fails to offer any response to Tarr’s argument and authority 

that evidence regarding the nature of a recovery home and requirements for 

admission to it constitute legally sufficient evidence that its residents satisfy the 

statutory definition of “disability.” In short, Lantana offers no supportable argument 

that the evidence proffered in the trial court did not create a genuine issue of material 

fact with respect to the disability of the Westlake Recovery House (“WRH”)

residents or the applicability of the federal and state protections afforded to them.

This Court should reverse and remand for a trial.
3

Attorney’s Fees

Lantana apparently concedes that the trial court’s injunction is invalid and 

unenforceable. Lantana argues, however, that it should nevertheless be entitled to 

attorney’s fees because (1) Tarr agreed to the fees and (2) a bare finding of the breach 

of a restrictive covenant is sufficient to support a fee award. Both propositions are 

meritless. First, as Lantana well knows, Tarr stipulated only with respect to the 

amount of fees, not Lantana’s entitlement to fees in the first place. It is outrageous 

to suggest otherwise. Second, Lantana ignores the governing authority of this Court 

and the Texas Supreme Court that provides that, in order to be a “prevailing party” 

under the relevant fees statute, the party must obtain some meaningful relief that 

materially alters the position of the parties, whether the relief is monetary or 

injunctive. Here, Lantana received no damages award and, as Lantana concedes, the 

injunction is invalid and unenforceable. It obtained no actual relief and is not entitled 

to recover attorney’s fees. Thus, at the very least, this Court should vacate the 

attorney’s fees award in recognition that the injunction is invalid.
4

ARGUMENT

I. The trial court erred in granting summary judgment for Lantana on its 

claim that Westlake Recovery House breached the deed restriction.

A. Lantana, not Tarr, had the burden to prove whether Westlake 

Recovery House was protected by the FHA and other laws.

Lantana assert that “Once a violation of deed restrictions are [sic] shown, the 

burden shi[f]ts to the person claiming Fair Housing Act protection.” Resp. at 29. 

But this burden-shifting approach simply does not apply here.

Lantana first cites AHF Community Development LLC v. City of Dallas, 633 

F. Supp. 2d 287 (N.D. Tex. 2009), and Celotex Corp. v. Catrett, 477 U.S. 317 (1986). 

Both of these cases, however, involve claims brought under the FHAA by someone 

claiming a disability; they do not involve purported violations of a restrictive 

covenant. Of course, when asserted as a claim, the individual asserting that claim 

bears the burden of proof. If these cases have any relevance to this issue, it is simply 

that it is the party asserting a claim, such as Lantana here, that has the burden of 

proof on that claim. Nothing in these cases suggests that Tarr has the burden to 

prove that his use of his property does not violate the covenant.

Next, Lantana relies on Lund v. Leibl, No. 03-99-00032-CV, 1999 WL 

546996 (Tex. App.—Austin July 29, 1999, no pet.) (mem. op.). Lund involved a 

challenge to a temporary injunction. The homeowner argued that to obtain a 

temporary injunction, the plaintiff must establish an injury, which, the homeowner 
5

argued, included showing that the home was not protected by the FHAA. The court 

rejected this contention, explaining that probable injury is not part of the temporary 

injunction analysis in a deed restriction case.

Lantana’s reliance on Lund is misplaced. It is easily distinguished from this 

case by the fact that there, unlike here, the restrictive covenant did not incorporate 

federal and state law protections in defining what constitutes a permissible use. As 

the proponent of its claim, Lantana has the burden of proving that WRH is not a 

permissible use, including that it is not a protected group home. Lantana attempts 

to simply wave away this fact by asserting that the purpose of the provision is simply 

to acknowledge that state and federal law may trump the covenant and permit its 

violation. Resp. at 28. But no provision would be necessary if that were its purpose. 

Moreover, the restriction does not provide that a group home violates the covenant 

but is nevertheless allowed if the owner can establish the applicability of the statute. 

Rather, it provides that group homes are included within the definition of permissible 

residential use and, thus, do not violate the restriction in the first place.

Because Lantana has the burden of proving that Tarr’s use is not a permissible 

use, it is Lantana’s burden to prove that WRH is not what it purports to be, a 

protected group home for recovering alcoholics and drug addicts. Gillebaard v. 

Bayview Acres Ass’n, 263 S .W.3d 342, 347 (Tex. App—Houston [1st Dist.] 2007, 

pet. denied); Hicks v. Falcon Wood Prop. Owners Ass’n, No. 03-09-00238-CV, 2010 
6

WL 3271723, at *7 (Tex. App.—Austin Aug. 19, 2010, no pet.) (mem. op.). But 

Lantana made no effort to show that WRH is not the permissible residential group 

home that it is. It did not even depose any of the then-residents or discover any 

evidence that admission to WRH does not require a statutory disability. 

In any case, even if this burden-shifting approach did apply here, it would not 

have the effect Lantana asserts. At the time of the First Summary Judgment on the 

FHA “affirmative defense,” Lantana had proffered no evidence of any violation. 

Rather, Lantana merely asserted that the federal and state protections simply did not 

apply. CR168-75. Thus, even under Lantana’s view, the burden had not shifted 

to Tarr to adduce any evidence that his home was protected by the FHA.

All of Lantana’s protestations that only the first summary judgment matters 

must fail. At the time of the first summary judgment, the burden had not shifted to 

Tarr under Lantana’s own burden-shifting argument. Lantana did not argue or 

present evidence establishing that Tarr had violated the covenant. Thus, Tarr had no 

obligation, even under Lantana’s position, to present evidence that his use of the 

property was protected by federal and state law. This, in addition to all of the other 

reasons argued here and in Tarr’s opening brief, Lantana’s assertion that the First 

Summary Judgment governs the entire case must be rejected.
7

B. The evidence is more than sufficient to raise a genuine issue of 

material fact that WRH is a protected group home and, thus, 

permissible under the restriction and federal law.

Rather than respond to the authority and argument presented in Appellant’s 

opening brief regarding the type and sufficiency of evidence of disability, Lantana 

asks this Court simply to ignore it. Lantana asserts that none of Appellant’s cases 

are relevant in view of the supposed governing authority. But the authority Lantana 

cites is in no way inconsistent with Tarr’s arguments and authority and does not 

suggest that his evidence is legally insufficient to survive summary judgment.

After citing a number of unrelated cases discussing the federal summary 

judgment standards—which are, of course, of little relevance here and shed little 

light on the sufficiency of Mr. Tarr’s evidence of disability—Lantana cites three 

cases regarding disability claims, none of which is inconsistent with the authority 

Mr. Tarr cites. The first two, Taylor v. Principal Financial Group, Inc., 93 F.3d 155 

(5th Cir. 1996), and McKey v. Occidental Chemical Corp., 956 F. Supp. 1313 (S.D. 

Tex. 1997), merely state the uncontroversial point that “disability” requires more 

than showing impairment; as discussed in Appellant’s opening brief, it requires a 

showing that the impairment was substantially limiting in daily life. Lantana does 

not even attempt to explain why Tarr’s evidence of substantial limitation is 

insufficient. Nor does Lantana attempt to explain how these cases are inconsistent 

with the widespread and diverse authority holding that admission to a group home 
8

recovery facility is prima facie evidence of disability. Nor does Lantana attempt to 

explain how one might otherwise prove disability for a fluid and changing 

population of residents.

Last, Lantana cites Burch v. Coca-Cola Co., 119 F.3d 305 (5th Cir. 1997), a 

Fifth Circuit case that Lantana asserts governs.1 But Burch is in no way inconsistent 

with the authority cited by Appellant Tarr. To begin with, as with Lantana’s other 

cases, Burch did not involve a deed restriction claim against a group recovery facility

but an individual discrimination claim against an employer. Thus, the Burch court 

did not address the issue presented in this case, namely, what evidence is sufficient 

to establish that a group home is protected under the FHA and related statutes. It is 

in no way inconsistent with the authority cited in Tarr’s opening brief holding that 

the nature of a recovery facility and admission requirements are sufficient evidence 

of a resident’s disability, including limitation in a major life activity. Br. at 34-42. 

Overwhelming authority—indeed, Lantana cites no opposing authority—holds that 

the type of evidence presented in the trial court here is sufficient. Id.; see, e.g., Reg’l 

Econ. Cmty. Action Program, Inc. v. City of Middletown (“RECAP”), 294 F.3d 35, 

 

1 Notably, Lantana appears to labor under the misimpression that Texas state courts are bound by 

interpretations of the Fifth Circuit. State courts are bound by the authority of higher state courts 

and the United States Supreme Court. Other federal or state authority, even from the Fifth Circuit, 

is persuasive but not binding. See Mohamed v. Exxon Corp., 796 S.W.2d 751, 753 (Tex. App.—

Houston [14th Dist.] 1990, writ denied). 
9

47-48 (2d Cir. 2002); Wagner v. Fair Acres Geriatric Center, 49 F.3d 1002, 1010 

(3d Cir.1995); McKivitz v. Twp. of Stowe, 769 F. Supp. 2d 803, 822 (W.D. Pa. 2010)

(holding that admission to facility is sufficient evidence of disability). Lantana 

offers nothing to support its assertion that this Court should ignore and reject this 

authority. 

Further, the Burch court held merely that the plaintiff’s testimony in that 

employment discrimination case—which was limited to the temporary effects of 

being inebriated, i.e., falling down while drunk—was not sufficient. Id. at 315-16. 

Further, the plaintiff testified that his drinking had not affected his work. Id. at 316 

n.9. Thus, in Burch, unlike here, there was no evidence of the permanent effects of 

alcohol or drug dependency. Indeed, the court specifically noted that such evidence 

would be sufficient to establish disability. Id. The evidence here clearly 

demonstrates that the WRH residents suffer long-term and continuing limitations in 

living far beyond the temporary effects of inebriation. Each resident testified 

regarding his inability to function normally in everyday life and work as a result of 

their addictions even when they are not actively drinking or taking drugs.2 See Br. 

 

2 Lantana’s assertion that Tarr waived any request that the trial court reconsider the improper First 

Summary Judgment is meritless. The issue was clearly before the trial court in the form of Tarr’s

response to Lantana’s second motion for summary judgment. Lantana’s assertion that hearings 

must be had on a separate motion for reconsideration is meritless. Resp. at 44-45. Moreover, as 

discussed above, Tarr does not have the burden of proof on this issue and the first summary 

judgment on “affirmative defenses” is a nullity. Further, under Lantana’s burden-shifting 

approach, at the time of the first summary judgment, the burden had not shifted to Tarr because it 
10

at 40-42; SCR23-37. See, e.g., RECAP, 294 F.3d at 47-48 (inability to “caring for 

one’s self” without relapse is necessarily a limitation in a major life activity); Jeffrey 

O. v. City of Boca Raton, 511 F. Supp. 2d 1328, 1334-35 (S.D. Fla. 2007) (same); 

Burka v. New York City Transit Auth., 680 F. Supp. 590, 600 n.18 (S.D.N.Y. 1988)

(same); see generally Br. at 34-42.

Taking all inferences in Mr. Tarr’s favor, as the Court must, there is certainly 

more than a mere scintilla of evidence that the residents of WRH are disabled within 

the statutory definition.

3

C. Lantana’s assertion that the home violates the covenant because it 

is a “duplex” is a red herring.

Lantana baselessly states that it is “without dispute” that the home is a duplex. 

First, this entire issue is a red herring and cannot constitute a second purported 

violation of the restrictions. The term “duplex” does not appear in paragraph 4.1 of 

the restrictions. Nor is there any evidence that the appearance or structure of the 

home is anything other than that of a single-family residential.4 

 

was not until the second motion for summary judgment that Lantana put the breach issue before 

the trial court.

3 TEX. R. CIV. P. 166a(i); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).

4 Notably, as the photographs of the home that Lantana submitted show, there is no second front 

entry door, the backyard has not been subdivided, and the utilities have not been sub-metered. 

CR370. Further, Lantana did not submit the findings of the City of Austin Code Enforcement 

inspector following inspections in August and September 2012 that were initiated by the 

neighbor’s allegations, because the inspector concluded that the home is, in fact, not a duplex. 

CR482.
11

Indeed, Lantana’s sole complaint is that there are unrelated persons occupying 

the home for which Tarr receives compensation. But as explained here and in Tarr’s

opening brief, a group home for recovering alcoholics and drug addicts does not 

violate paragraph 4.1. Further, Lantana simply ignores the authority that holds that 

a group home may, without violating any restrictive covenant, receive income for its 

operations.5 See, e.g., United States v. City of Chicago Heights, 161 F. Supp. 2d 

819, 844 (N.D. Ill. 2001) (The FHA “does not require group home providers to give 

away their services, to operate at a loss, nor to declare a particular tax status. If it 

did, there would be far fewer residences for disabled persons than there presently 

are.”); Rhodes v. Palmetto Pathway Homes, Inc., 303 S.C. 308, 400 S.E. 2d 484, 

485-86 (1991); City of Livonia, 378 N.W.2d at 431 (holding that the fact that 

residents may be required to pay for services does not “transform the nature of the 

activities conducted in the home from residential to commercial.”); see generally Br.

at 24-31. 

Thus, contrary to Lantana’s contention, the “duplex” provision of the 

covenants does not constitute a purported second violation of the restrictions. If the 

home is protected by the FHA and related statutes, then its internal physical structure 

 

5 Lantana makes a rather outsized point that the focus is “income producing” rather than “for 

profit.” Indeed, this is a point made in Tarr’s opening brief. The term “for profit” is taken from 

Lantana’s own pleadings in this case.
12

(even if there were any evidence that it was altered) and the receipt of compensation 

are immaterial.

II. The trial court erroneously granted summary judgment on Mr. Tarr’s 

counterclaims based entirely on its erroneous summary judgment on 

the affirmative defenses.

The bulk of Lantana’s response on this point is simply a procedural history 

and a reiteration of its assertion that Burch disposes of relevant case law. As 

discussed above, it does not. Indeed, Lantana raises no additional arguments in this 

section.

III. The trial court erred in awarding attorney’s fees to the HOA based on a 

void and unenforceable injunction.

Lantana does not contest that the injunction is void and unenforceable.6 

Rather, it merely says it does not matter because (1) Tarr allegedly agreed to the fees 

award and (2) case law from other districts says that breach is all that is needed to 

be a prevailing party. Both of Lantana’s assertions are wrong.

A. Tarr did not agree that Lantana was entitled to recover attorney’s 

fees.

Lantana’s assertion that Tarr agreed that Lantana was entitled to fees is 

disingenuous. In fact, Tarr stipulated only to the amount of fees, not that Lantana is 

 

6 Moreover, Lantana does not request that this Court remedy the obvious defects in the injunction. 

Nor could it, because Lantana has waived any right to complain about the injunction by repeatedly 

moving for and submitting final judgments that include the invalid injunction and failing to cross 

appeal on this issue.
13

entitled to recover any fees in the first place. As the trial court (and Lantana) 

recognized, Tarr had the right to challenge all other issues, including Lantana’s 

entitlement to fees. “No part of this Final Modified Judgment or the prior orders of 

this Court are agreed to by Tarr except the amount of reasonable and necessary 

attorney’s fees set forth above, and Tarr reserves his right to appeal from every other 

ruling in this Judgment and those prior orders.” CR623 (App-A) (emphasis added). 

For Lantana to assert otherwise is a gross mischaracterization of the record.

B. To be a “prevailing party,” one must obtain some meaningful relief 

that materially alters the position of the parties.

Lantana’s assertion that the attorney’s fees award was based not on the 

injunction but, rather, the alleged breach alone entirely misses the point of Tarr’s 

argument that it was not a “prevailing party” under section 5.06 and is contrary to 

this Court’s and the Texas Supreme Court’s precedents. 

In Norton v. Deer Creek Prop. Owners Ass’n, Inc., No. 03-09-00422-CV, 

2010 WL 2867375 (Tex. App.—Austin July 22, 2010, no pet.), this Court, applying 

Texas Supreme Court authority, explained that to be entitled to attorney’s fees as a 

“prevailing party” under section 5.06, the party must obtain “actual relief on the 

merits of his claim” that “materially alters the legal relationship between the parties 

by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” 

Id. at *8 (quoting Intercontinental Group P’ship v. KB Home Lone Star L.P., 295 

S.W.3d 650, 654 (Tex. 2009)); see also Wibbenmeyer v. TechTerra 
14

Communications, Inc., No. 03-09-00122-CV, 2010 WL 1173072, at *10 (Tex. 

App.—Austin Mar. 26, 2010, pet. denied) (mem. op.) (explaining that the party must 

have obtained relief from the court that effect a “material alteration of the legal 

relationship of the parties”). Thus, the touchstone is not a naked finding of breach 

but, rather whether any material relief or change in the position of the parties is 

obtained.

The main case on which Lantana relies is Nash v. Peters, 303 S.W.3d 359 

(Tex. App.—El Paso 2009, no pet.). To the extent that Nash, which involved issues 

regarding the jurisdiction of justice courts, stands for the proposition that a party 

“prevails” even if it does not obtain any actual relief (be it monetary or injunctive), 

it was wrongly decided and is in direct opposition to the governing precedent of this 

Court and the Texas Supreme Court. Indeed, the Nash court cited precisely the 

same inapposite authority on which Lantana relies. None of the cases cited by the 

Nash court and Lantana even address the issue, much less stand for the proposition 

that a bare finding of breach of a restrictive covenant without any actual relief is 

sufficient to “prevail” and be entitled to attorney’s fees.

 Jim Rutherford Investments, Inc. v. Terramar Beach Community 

Association, 25 S.W.3d 845, 853 (Tex. App.—Houston [14th Dist.] 

2000, pet. denied). The issue in this case was the reasonableness of the 

amount of fees, not who prevailed. Further, a permanent injunction was 

entered. Thus, the issue of whether a party prevails where it obtains no 

material relief was not raised or addressed.
15

 Munson v. Milton, 948 S.W.2d 813, 815 (Tex. App.—San Antonio 

1997, pet. denied). This case did not even involve attorney’s fees or 

what constitutes a prevailing party. 

 Briargrove Park Property Owners, Inc. v. Riner, 867 S.W.2d 58, 61 

(Tex. App.—Texarkana 1993, writ denied). In this case, the plaintiff 

was awarded money damages. Thus, the issue of whether a party 

prevails where it obtains no material relief was not raised or addressed.

 City of Houston v. Muse, 788 S.W.2d 419, 424 (Tex. App.—Houston 

[1st Dist.] 1990, no writ). In this case, a permanent injunction was 

awarded. Thus, the issue of whether a party prevails where it obtains 

no material relief was not raised or addressed.

 Anderson v. New Property Owners’ Association of Newport, Inc., 122 

S.W.3d 378, 390 (Tex. App.—Texarkana 2003, pet. denied). Holding 

that a defending party is not entitled to fees.

 Pebble Beach Property Owners’ Association v. Sherer, 2 S.W.3d 283, 

291-92 (Tex. App.—San Antonio 1999, pet. denied). Holding that a 

defending party is not entitled to fees.

 Inwood North Homeowners’ Association, Inc. v. Meier, 625 S.W.2d 

742, 743-44 (Tex. Civ. App.—Houstion [1st Dist.] 1981, no writ). A 

permanent injunction was granted. Thus, the issue of whether a party 

prevails where it obtains no material relief was not raised or addressed.

These cases simply do not support or even suggest that a bare finding of 

breach where no relief is granted that materially alters the positions of the parties is 

sufficient. Courts exist to provide relief, not mere rhetorical vindication. Something 

must result from the determination of breach. Otherwise, the suit is just a waste of 

the parties’ and court’s time and resources that should not be encouraged by the 

availability of attorney’s fees.

CONCLUSION AND PRAYER

Appellant Mr. Tarr prays that the Court reverse the trial court’s judgment and 

remand for trial on both the HOA’s breach claim and Appellant’s counterclaims. 
16

Appellant further prays that the Court vacate the injunction and award of attorney’s 

fees. Appellant also prays for such other and further relief to which he may be justly 

entitled.

Respectfully submitted,

/s/ Matthew Ploeger

Matthew Ploeger 

State Bar No. 24032838 

LAW OFFICE OF MATTHEW PLOEGER 

901 S. Mopac Expressway, Suite 300

Barton Oaks Plaza, Building One

Austin, Texas 78746 

P: 512.329.1926 

F: 512.298.1787

Matthew@PloegerLaw.com 

Attorney for Appellant
17

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that 

this brief contains 3,904 words. This is a computer-generated document created in 

Microsoft Word, using 14-point typeface for all text, except for footnotes which are 

in 12-point typeface. In making this certificate of compliance, I have relied on the 

word count provided by the software used to prepare the document. 

/s/ Matthew Ploeger

Matthew Ploeger

CERTIFICATE OF SERVICE

I hereby certify that I served a true and correct copy of the foregoing Brief of 

Appellant on all counsel of record on June 8, 2015, as listed below:

Gregory B. Godkin

Roberts Markel Weinberg, PC 

2800 Post Oak Blvd., 57th Floor

Houston, TX 77056 

713.840.1666–telephone 

713.840.9404–facsimile 

Via Electronic Service

/s/ Matthew Ploeger

Matthew Ploeger